The Supreme Court’s Role in Police Violence

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S1: The Supreme Court is responsible for so many of the problems placing United States and especially the racialised nature of policing United States. And the reality is at least among the six conservative justices, there’s no recognition of a problem of policing, no recognition of a racialized policing United States.

S2: Hi and welcome to Amicus. This is Slate’s podcast about the courts, the law, the rule of law. I’m Dahlia Lithwick. I cover those things for Slate and just as we are taping, the United States Supreme Court has announced that it will decide on an extremely expedited basis to cases that arise out of Texas. Controversial abortion ban SB eight That’s the six week ban that went into effect on September 1st. In a very brief order, the court agreed to set this super fast briefing schedule and arguments for November 1st in United States v. Texas and Whole Women’s Health V. Jackson. For what it’s worth. This is the court moving really, really, incredibly quickly. And they will be briefed and argued in those ten days. One of these is the cases that is brought by the abortion providers who sought to set aside the law. The other is the big Justice Department’s suit against the state of Texas. Justice Sotomayor, dissenting alone, concurring in part, said quote for the second time, the court declines to act immediately to protect these women from grave and irreparable harm. The question before the court is really limited to procedural questions in the Justice Department that suit. The only issue is whether the U.S. can sue the state of Texas and state officials and private parties to stop SB eight from being enforced in the abortion providers suit. Similarly limited to whether a state can insulate from federal court review a law that prohibits the exercise of a constitutional right so the substance of SB eight, the constitutionality of Roe v. Wade is not before the court in November. But it will be when the court hears the Mississippi abortion case in December. We will be here to break down both SB eight and Dobbs in the coming weeks. Later on in the show, Slate Plus members will have access to our bonus segment with Slate’s own Mark Joseph Stern. This week, we’ll talk about the continued politicking by the apolitical oracles in robes. It’s Clarence Thomas turn to sit smiling, a politically beside the apolitical Mitch McConnell. And we’re also going to take a look at the maps. Redistricting is on, and it’s very, very much worth your time to think about it. And actually speaking of Slate Plus, I do have a special announcement for you today. This year marks the 25th anniversary of Slate, and for a limited time only, we are offering our annual Slate Plus membership at $25 off. As a member, you get no ads on any of our podcasts, unlimited reading on the slate site and member exclusive episodes and segments from us and other shows like Slow Burn and Political Gabfest. For the past quarter century, Slate has been covering all the major news events, from elections to social issues to historic landmark court decisions, and I have been right there in the chamber as the court heard Bush v. Gore Obergefell Whole Woman’s Health, and it is amazing to think that it happened in twenty five years. It feels like the blink of an eye. Our culture shows have debated whether things are sexist, named the best summer songs, explained the latest TikTok trends. If we have become a part of your listening routine, we ask that you support our work by joining Sleepless. Sign up for Slate Plus at Slate.com Slash Amicus Plus to keep us going for another 25 years again, we are giving you twenty five dollars off an annual membership through October 31st, so sign up now at Slate.com Slash Amicus Plus this week I’m joined by a very good friend of the podcast. Erwin Chemerinsky Erwin is the dean of Berkeley Law at the University of California. He is the author of 14 books, including his new book Presumed Guilty How the Supreme Court Empowered the Police and Subverted Civil Rights. Presumed Guilty is an incredibly timely assessment of the role played by the Supreme Court itself in constructing a legal regime in which, as Erwin puts it, the police almost always win. We recorded this conversation earlier this week in partnership with the historical societies of the 9th Circuit and of the Northern District of California, whose missions are to preserve the vibrant legal history of the West and to educate about the importance of an independent. Judiciary. Erwin, it is wonderful to be in conversation with you, and it is good to see you and congratulations on yet another stunningly, stunningly important book.

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S1: Thank you for the kind words, and it’s always so wonderful to get to talk with you.

S2: The Supreme Court generously provided little illumination for this discussion, with a pair of unsigned opinions Monday, which had the court siding with the police in not one but two cases in which plaintiffs claimed that officers had used excessive force and the court overturned two separate lower court rulings that had allowed the officers to be sued for civil rights violations. Now I know you don’t design the news to coincide with our book events, but can you talk us through these pair of opinions from Monday and maybe through the lens of the much larger conversation you have in the book about this line of qualified immunity cases?

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S1: Of course, my guess is that most of the audience is familiar with qualified immunity, but just a bit of background. Whenever any government official is sued for money damages, there’s always an immunity defense. Some government officials have absolute immunity. It can’t be sued at all for certain tasks. Judges for the judicial tasks, prosecutors the prosecutorial task have absolute immunity. But government officials who don’t have absolute immunity always have qualified immunity in the Supreme Court has said that qualified immunity means that a government officer liable only if he or she violates clearly established law that every reasonable option now must be right established beyond debate. I do think it’s worth pausing, saying this is all just judicially created law. There’s nothing in any statute, let alone the Constitution about this. Many and both the right and the left have criticized the Supreme Court’s qualified immunity jurisprudence. In reality, it’s close to absolute immunity, and that’s especially so in police excessive force cases in both the rulings that you referred to for police excessive force cases. And I think together they establish a really important point. The first of these is Riva V. Ageist vs. Curtis Alona, and it involves a situation where a woman and her two daughters were barricaded into a bedroom. Abusive boyfriend was there, apparently with a chainsaw to try to break down the door. And one of the daughters called the police. The police come. They get in an altercation with the man. They shoot him with a couple of bean bags and then they pin him down to the ground and do so with great force and cause injuries to him. And the question was, was the action of the police pinning him in that way? Excessive force in the Ninth Circuit said under Ninth Circuit precedent, it clearly was excessive force. The Supreme Court and so procuring opinion there’s no dissent, says that it’s reversing the Ninth Circuit. It stresses that there’s no case exactly on point in this situation, so the officers are protected by qualified immunity. I’ll quote neither cortisol into the injured individual through the Court of Appeals identified any Supreme Court case that addresses facts like the ones at issue here in the Supreme Court concludes and says on the facts of this case, the Ninth Circuit precedent decision of this court is sufficiently similar. The other case that came down, it’s also police abuse case, this is the city of Tulsa, Oklahoma, versus bond. It also is a tragic domestic dispute. A woman calls the police on her ex-husband. The police get in a conversation with him in a tool shed. He pulls a hammer off the wall. It appears that he might throw the hammer at the police, even though there are many feet away. The police shoot and kill him. The state see this excessive force. And here is the United States Court of Appeals for the 10th Circuit that says that the case can go forward, let the jury decide if it’s excessive force. But the Supreme Court again. What’s more, a unanimous picture opinion reverses and once more the court stresses that there’s not a case on point. The Supreme Court says, and I quote now, one of the decisions relied on by the Court of Appeals comes close to establishing that the officer’s conduct was unlawful. The court concludes In the last paragraph, neither the panel majority nor the respondent identified a single precedent, finding a Fourth Amendment violation under similar circumstances. The officers, entitled to qualified immunity with the Supreme Court, is saying saying explicitly is unless there’s a case with identical facts the office protected by qualified immunity. And of course, really, are you going to have identical facts, which then means the qualified immunity is so very protective of police officers?

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S2: I know that this is rank speculation Erwin. But the thing I’ve been asked the most since these decisions came down and where? Where are the dissents? Why are we not getting a passionate dissent from Justice Sotomayor? Why are we not getting an angry dissent from Justice Kagan

S1: just a year ago in Taylor versus V. has the Supreme Court seven to one said you don’t need a case on point, so long as the office had fair notice that the conduct was unconstitutional. No qualified immunity. Why doesn’t one of the liberal justices say that here? My guess is that the liberal justices are trying to figure out when is it worth the writing dissenting opinions? Justice Sotomayor said a few weeks ago that people are going to be very disappointed by this term. She knows what’s on the docket. She knows what her colleagues are likely to do. And my guess is that the liberal justices decided these weren’t the cases to expend their political capital. These weren’t the cases to spend their time at dissents.

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S2: So I guess this dovetails into the question that I would have led with otherwise, which is your book ends on this slightly depressing note. Erwin, you say we must hope all this attention and you’re talking about the protests that happened in 2020 will pressure all the branches of government at every level to take action to change policing in the United States. But the Supreme Court has become ever more conservative over the last half century, especially in the last few years. The protests are unlikely to resonate with these justices. And so I think we’re sitting here in this doom loop Erwin where horrible things happen. The nation reacts with horror. Whether it’s Eric Garner or George Floyd, they take to the streets, they demand reform. I think your point, both in that quote and in the book, is that the court is as much a driver as the of these police practices, as police departments, local governments. And yet somehow they are left out of this conversation. We give them a pass as we, I guess, will continue to do and we take to the streets and we’re angry. But the kind of prime mover here gets off scot free.

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S1: The thesis of the book is that the Supreme Court is responsible for so many of the problems policing United States and especially the racialized nature of policing United States. And the reality is, at least among the six conservative justices, there’s no recognition of a problem of policing, no recognition of a racialized policing United States. So in the book, I don’t let the court have a free pass. The reason I wrote the book was to say we need to blame the Supreme Court for the problems of policing in the United States. But I also don’t think we can look to the Supreme Court for the solution, not in the near term, given the six conservative justice in their age. I don’t see they’re changing their views and I don’t see them being replaced. So my point the last chapter is meant to be a hopeful one. There are places that we can go for reform other than the Supreme Court. Now, I have to admit, when I finished the manuscript not over of 20 20, I was more hopeful than I am now. A year later, because the tragic death of George Floyd, the protests in all 50 states led me to believe that there was going to be legislative action. A good bill, not a perfect bill, passed the House of Representatives, though, to change many things, including qualified immunity. But it stalled in the Senate and because the likely filibuster is not going to pass. Some states, some local governments, have adopted laws. California adopted a law a year ago that prohibits police from using the chokehold. California this year adopted laws that I think are quite good in terms of certain forms of the police. A police officer, certain discipline violations now is decertified and can’t move someplace else in the state to become a police officer. Many cities adopted ordinances prohibiting the use of the chokehold. I thought there’d be more legislative action. I worry now that it’s going to take the death of the next George Floyd or Eric Garner or Laquan McDonald. The next mobilization to push through reform. But I still think it’s possible.

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S2: I wonder if we can start Erwin where the book starts, and that is with the chokehold. You point out this didn’t just happen. It’s used by the police again and again and again, and there’s an outcry and somehow the courts just continue to place the chokehold out of bounds. And you locate sort of the beginning of the problem with City of Los Angeles versus Lions in 1983. So I wonder if you can walk us through that case and then tell us a little bit about, I think just you quote Thurgood Marshall dissent in that case as as somewhat prophetic. But I wonder if you can just walk us through why the chokehold never goes away?

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S1: Of course, Adolph Lyons is a 20 year old black man in Los Angeles. You stop late one night during a burnt out tail light. The officer did lions out of his car. The officers slam lions hands above his head under the roof of the car. Lions complained that the keys that he was holding were cutting into the skin of his palm. The officer thought that lions was quote mouthing off and it missed a choke. Hold on lions. Be clear about what this meant. The officer put his forearm around lions neck and squeezed into the lions was unconscious. You woke you spitting blood and dirt. It urinated and defecated. The officer gave lions a traffic ticket. Let him go. Lions did some research discovered to that point. Sixteen people in Los Angeles died from police use of the chokehold. Most all like him. African-American men. Lyons sued the city for an injunction to stop police officers from using the chokehold, except the three necessary check the officer’s life or safety. But the Supreme Court ruled five to four that lions lacked standing to seek an injunction, Justice Byron White wrote the opinion for the court. He said lions could not show that it was likely that he personally choked again in the future. The Supreme Court said in order for someone to seek an injunction and is standing, the person is still likely a future personal injury. No one then can ever sue for an injunction to stop use of the chokehold, because no one can show it’s likely to get there in the future. This makes it very difficult to challenge many police practices. There are some lower court cases than other police departments. They’re degrading horrific practice of strip searching women when they were stopped for routine traffic infractions and the women who were subject to the practice sued and said we won an injunction to stop police from doing this in the future. And the lower court said based on science, you can’t show you’re going to be stopped and strip searched. So you don’t have standing to be able to sue. Thus, no one will have standing to sue in federal court to stop the use of the chokehold. And it’s a chokehold that led to the death of so many people George Floyd, Eric Garner and many others. And Thurgood Marshall’s point in his dissent alliances the role of the federal court is to enforce the Constitution. Surely somebody has to be able to have standing to challenge a practice that’s alleged to be unconstitutional. And when you think about the role of the courts in being able to reform police departments, Lyons so limits that power. And it’s not just about the chokehold that so many abusive police practices.

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S2: We’re going to pause to hear from one of our great sponsors. And now let’s get back to our conversation with Dean Erwin Chemerinsky of Berkeley Law about the Supreme Court’s often unseen hand in stifling police reform and propping up racist police practices. You’re an amazing storyteller and in every one of these cases, you tell us the back story. You also toggle back and forth to conversations you have with your students and how they react to these cases. And also, I think most chillingly, for me, you know, conversations you’ve had in your various, you know, studies and interventions in with police forces, sometimes you know who come to you and say, help us understand this. And I wonder if you can just as we try to set the table for this conversation help us understand some of those conversations. You have those discussions you have. If, like me, you don’t want to believe that cops are just racist. What is the thing that you hear time and time and time again when you’re talking to, you know, police chiefs and other officials who are explaining to you why this can’t? We can’t get out of this doom loop

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S1: until a couple of stories to answer your question. One is a little bit. Over 20 years ago, when the Rampart scandal came to light in Los Angeles, I was asked to a study of the Los Angeles Police Department, and I recruited a wonderful group of civil rights lawyers to work with me. And over about six months, I interviewed about 100 police officers and overall, I was tremendously impressed by them. So many of them told me that the proudest day of their life was the day that they got their badge. We were also found so disturbing was I learned a lot about the culture of the Los Angeles Police Department. So many officers told me that the police academy, they were taught the law and then they were taught how policing was really done in the city of Los Angeles. Many of the officers told me that they knew that if they ever reported misconduct by another officer the next time they were in the field in danger, no one to protect their backs that they feared that they’d often be punished by the press and retaliated against for exposing wrongdoing by other officers. And I became convinced, and I wrote a 200 page report that the key problem in Los Angeles wasn’t overt racism. Certainly, there was a great deal of implicit bias. But the real problem was a culture. And it’s a culture that, in the phrase I used in the report and used in the book that really exalted Dirty Harry and Shun Serpico. So I have to tell you that one of my children at the book, he had no idea what that meant. My other story is more recent. You remember a case in thousand sixteen Utah versus st in involved. If the police illegally stopped somebody but then find that there’s an outstanding warrant is the evidence gained admissible in Justice? Thomas, writing for the court, said that it is. Justice Sotomayor wrote one of her most important dissents, talking about what it is like to be a person of color in the United States and the talks that have been given to children, but dealing with the police. But six months after that case, the inspector general of a major city police department came to my office with all of his staff, and he said there’s a tremendous increase in illegal stops by our police department. So the police learned Utah vs. St. tells them that an illegal stop doesn’t matter. If you find an outstanding arrest warrant, then the evidence you get is admissible. And how do we deal with the problem of this tremendous increase in illegal stops? And it showed me, if nothing else, the police learned very quickly what the Supreme Court says and what they can do and get away with.

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S2: That was the part that worried me. Was there a sense that time and time again, whatever the new rule is, the police reverse engineer it and teach around the rule, and it led me to be much more dismayed about any possibility of actual corrective action. Talk me down.

S1: I think the police very much want to follow the law. And if the law imposes greater restrictions, they’ll follow that. So if the city allows the chokehold, the police are going to use it. And if the city prohibits the chokehold, the police won’t use it. If the law allows the police to enter a residence at night without knocking in announcing the police will do it. But if the law prohibits entering without knocking and announcing the police won’t do it, the police generally or rule followers, yes, of course there are bad apples, and yes, they’re overtly racist police. But having talked to a lot of police over many years, I think the police do want to follow the law. And if we had better law, better local ordinances and statutes and state supreme courts and the US Supreme Court, we would then have better policing.

S2: And Erwin, I think we’ve already touched on this and touched on it again, but it really is a through line throughout this book. You can’t look at this outside of questions about race. And when you talk about sort of the history of policing, it’s clear that policing has always fallen heaviest on Americans of color and on poor Americans. And yet, as you said, I think at the beginning, the court, as it exists today, simply refuses to acknowledge this fact. I mean, this basic I’m sneakily thinking critical race theory in air quotes fact. But it’s it’s so impossible to look at this. And I also flagged this brief dissent where Sonia Sotomayor famously talks about the talk that parents of color give their children. And I guess I’m just looking for some theory of how you could analyze centuries of law around police and policing and just not take this into account.

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S1: I don’t think you can. The statistics are so stunning, and I present some of them in the book and I’ll just give you a couple. In 2016, black males between 15 and 34 were nine times more likely than other Americans were killed by law enforcement officers that killed it four times the rate of young white men. Hispanic men are twice as likely killed by the police as white men. The United States Civil Rights Commission says while people of color make up fewer than 38 percent of the population, the 63 percent of unarmed people killed by the police. Study after study has been done about police stops. You might remember the major litigation in New York City. Floyd was city in New York, and the statistics there are stunning. But how much more often blacks and Latinos are stopped than whites, even though whites are much more likely found with contraband and weapons? Similarly, in San Francisco, Los Angeles, Greensboro, North Carolina in study after study, it shows black and brown people are much more likely to stop than whites. And yet, if you read the Supreme Court cases about policing, you’ll search in vain for a majority opinion that recognizes this is a problem. I don’t know how to answer your question that I say that I think the conservative justices live in a bubble and this isn’t part of what occurs in that bubble.

S2: You devote some time to the Bill of Rights and how much the framers built their own suspicion of police power privacy, a real anxiety around so many parts of policing. Into the Constitution, and I wonder if you can I’m sure there’s not a simple answer to this, but can you sketch out for us what they were afraid of? In other words, what animated all the various places that we see their worries about warrantless searches and invasions of privacy and self-incrimination? It’s everywhere. What were they reacting to?

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S1: And it is stunning how much of the Bill of Rights is dealing with criminal suspects and criminal defendants. And the answer to your question is they saw abuses that occurred in the colonies under the rule of the King of England is an example under English law. There could be a general warrant where you could search anyone in a neighborhood under it, and what they wanted in the Fourth Amendment was to reject the idea of a general warrant. They wanted individualized suspicion before somebody was searched or arrest. They believed in the privilege against self-incrimination that no one should be forced to be a witness against himself or herself. They believed in the ability of somebody who’s accused of a crime to confront one’s accusers again because this wasn’t allowed in English courts.

S2: Can you talk a tiny bit about the political failure? I think you set it up as there’s no set of facts under which there will ever be the political will to initiate the kinds of reforms you’re talking about. And I wonder if you know you talk about the differences between elected judges and appointed judges and where you know the money is and the power is? But it does again feel as though if you’re looking for relief from the courts and you’re not going to get it. And yet it seems as though there’s just never going to be the kind of popular political will to make changes. It leaves you feeling as though you’re a little bit standing in the wind without hopes of change. Can you? Can you reconstruct for us why these are such profoundly unpopular political fights?

S1: There hasn’t been the political will for change. I’m still hopeful there will be the political will in the future. The reason there hasn’t been is politicians don’t want to seem soft on crime. They want to see for their next election that they’re tough on crime, they don’t want to seem the one responsible for letting somebody free who then goes and commits murder. And so think about it. When’s the last time a legislature passed a law to increase the rights of criminal defendants? When’s the last time that a legislature adopted a law to give prisoners more rights is, you know, is all the listeners know the Supreme Court in nineteen thirty eight, the famous curling products footnote said there’s a special judicial role when there’s discreet, insular minorities with. And then there’s these groups that are unlikely to be able to protect themselves through the political process. Criminal suspects and criminal defendants are that. Or maybe to put it a more crass way, politicians respond to gives money to their campaigns and who spends money to get them elected. Those through the population of criminal suspects and criminal defendants aren’t the ones who are giving money to candidates elected. And in 40 states, there’s elected judges, and the elected judges don’t want to hand down rulings. They’re going to come to haunt them in the next election. Many studies have been done that compare the behavior of elected judges to appointed judges who don’t face retention with you in death penalty cases shouldn’t surprise any of us that elected judges are far less likely to reverse death sentences because again, they don’t want to give a commercial a sound bite to their opponent the next election.

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S2: I wonder if you can take us all the way back and talk about the history of the of policing in the United States. You can definitely take a detour into again the ways in which race shapes that. But I think it’s surprising. At least it was to me and maybe to our listeners the extent to which the court just butted out of policing until very, very recently. And I know we’re going to have to get to this incorporation question, but at least for right now, can you just give us the brief history of the relationship between the courts in policing?

S1: It’s interesting. We were talking about all the constitutional provisions that are meant to limit police, the Fourth Amendment that limits stops and arrests and searches. The Fifth Amendment that limits interrogation by protecting the privileged in self-incrimination. But it wasn’t for a century that you found the first Supreme Court cases dealing with these provisions. There weren’t Supreme Court cases in the 19th century until quite late that dealt with police searches or police interrogation. Why was that? Some of it, as you say, is the bill of Rights, didn’t apply to state and local governments through the 19th century. Also, there wasn’t a federal law enforcement until the 20th century when the FBI gets created. And what is the effort to enforce prohibition? Also, one of the things I’ve forgotten is organized police forces, as we know them today, didn’t exist until after the Civil War. There was always a sheriff or a constable or a town marshal, but there wasn’t a police force there. If the individual who was the sheriff needed a group of people to round up a suspect, he’d organize a posse. The first organized police force, the United States, with slave patrols that existed in the south to catch runaway slaves.

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S2: So I think now what I want to talk to very quickly is technology, which is kind of the other side of the coin because I think, you know you’ve you’ve talked about how in some sense under developed the law around policing was until suddenly it wasn’t. And then once the law begins to become robust, technology almost obviates everything that the courts have found. And it’s one of those places where, you know, whether it’s the infrared camera or it’s, you know, tracking cars. I think that there’s a strange way in which you paint an arc of a court that can’t keep up. And once it finally catches up, then gets behind, there’s like seven seconds in your book where the court is actually appropriately responding to how we police.

S1: I think a key case here was Olmstead versus the United States in 1928. It was a case arising out of prohibition and the police applied a wiretap to somebody but not going under the individual’s premises. They were able to put the wiretap on the phone lines without actually trespassing. And the question is, was that a search if there was no trespass? And the Supreme Court, in an opinion by Chief Justice, Taft, said if there’s no trespass, there’s no search. That, after all, was the common law in England. Justice Brandeis writes one of his most famous and important dissents, but the right to privacy. It wasn’t until 1967, almost 40 years later, that the Supreme Court overrules Olmstead and says that the Fourth Amendment applies to has to be probable cause and usually a warrant if there’s a reasonable expectation of privacy. And the Supreme Court is applying that in recent years technology. For example, just a few years ago, Supreme Court said if the police want to obtain cellular location information or cell phone records that record where we were at a moment in time, they need to be able to get they have to get a warrant for that. But people don’t realize this. That was a five four decision, with Chief Justice Roberts writing with Justices Ginsburg, Breyer seven, Kagan in the majority. I wonder if it would be decided the same way today was Justice Barrett instead of Justice Ginsburg and two of the justices, Thomas and Gorsuch, say we should go back to the approach that was used in Olmstead and only find a search if there’s a physical trespass. Think about what that would mean. Police could use any technology they want, and they would never need to get a warrant. Never need probable cause so long as there isn’t a physical trespass.

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S2: We’ll be back in just a moment with more from Dean Erwin Chemerinsky of Berkeley Law on his brand new book Presumed Guilty How the Supreme Court Empowered the Police and Subverted Civil Rights. The book, in some sense, Erwin is a linking up of a whole bunch of interlocking doctrinal areas habeas corpus, eyewitness ID. Exclusionary rule Miranda, as you said, some of this really rooted in basic constitutional concerns, all of which together in the aggregate, at least since the end of the Warren Court era, work together to immunize police. I wonder if you want to talk about one or two of those areas. It’s I mean, each and every one of them is sort of shocking in the devolution from the high watermark of of of protection. But I wonder if there’s one or two that you want to just lay out as an example of the encroachment of what, at least in the Warren Court era, at least for some of these doctrines seemed as though they were urgently important.

S1: Let me give two examples. One involves the Fourth Amendment, and it’s not hyperbole to say under current law, the police can stop virtually any person, any time they want and frisk the individual. And the case I’d point to here is one you’re familiar with Rennes versus the United States. Nineteen ninety six. It involves some undercover police officers in Washington, D.C., who are driving around. They saw cars stop what they thought was an unusually long amount of time 25 to 30 seconds. I have the world’s worst sense of direction. I’m often stopped longer than that at a stop sign. It used to be to read a map. Now it’s to look at my GPS in D.C., undercover police officers are not allowed to enforce traffic laws. Nonetheless, the officers followed this car until the driver turned without a turn signal. They stopped the car based on the traffic violation, ordered the driver and the passenger out, did a search of the area they were occupying and found drugs. There’s no doubt that the traffic stop was a pretext for doing a search for drugs. But the Supreme Court ruled unanimously that it didn’t violate the Fourth Amendment. Justice Scalia wrote for the court and said once there’s probable cause, reasonable suspicion that there’s a traffic infraction, police can stop the car or everyone out and search the area with the driver and passenger traffic. I heard what someone once remarked that if you follow any driver but 15 minutes, you’ll see a traffic violation going a mile over the speed limit. Changing lanes without a signal not stopping long enough at the stop sign. And the police can just do that, then order everyone out of the cars, search the vehicle. And all the officer has to say is I saw a suspicious bulge, so I frisked the person and anything that the officer finds the touch is admissible. That’s why I say it’s not an exaggeration that the police can really stop anyone and search them any time. My other example comes from something that I don’t think has got nearly enough attention. We know from so many studies that innocent people have been convicted and even sentenced to death based on inaccurate eyewitness identification. When you look at the work of the Innocence Project, when people have been exonerated through DNA, time and again they were convicted based on inaccurate eyewitness identification, and we know that eyewitness identifications are particularly inaccurate when they’re cross-racial. Social psychologists have documented that people are much less able to identify somebody of a different race. But since 1986? The year the Rehnquist Court started, there’s only been one Supreme Court case even addressing eyewitness identifications, and that was an eight one decision, with only Justice Sotomayor dissenting ruling in favor of the police. The Supreme Court has completely ignored mountains of evidence. But the problems with eyewitness identifications?

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S2: It’s one of the things that is so striking in the book is, you know, we talked at the beginning Erwin about the extent to which the court has blinkered itself to racial disparity in how we’re policed. But the time and time again, you have this sense that all you need to do is pick up a newspaper and figure out that we have innocent exonerations all the time. That eyewitness IDs are notoriously unreliable. Who goes from being blinkered to willfully blind about some of the data that’s been amassed? Not just as you said at the beginning in terms of racial disparity, but just in terms of how rickety the system of policing is and all the false premises that it’s built upon.

S1: I think we have a majority of justices who believe that the police have a very hard job and we should give great deference to the police. Now, I too believe the police have a hard job and I too believe there are times with deference. But I believe that the evidence is overwhelming, that the police engage in highly racialized policing and that there need to be checks and controls on the police. And that’s where the majority of the justices just don’t see it and just aren’t doing it.

S2: Can you talk for a little bit? I compressed many chapters of your book when I said there was a really brief, I think I said seven second, maybe let’s say seven year period in which the Warren Court seemed intent on rethinking some of this. Can you talk a little bit about some of the quote unquote wins at that time? Some of the things that the Warren Court was willing to acknowledge and the kind of backsliding that happened in the Berger court era and beyond.

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S1: The warrant quotes nineteen fifty three to nineteen, sixty nine, but most people don’t realize there is a liberal majority on the court. Only from nineteen sixty two when Arthur Goldberg replaced Felix Frankfurter until nineteen sixty nine, when Earl Warren and Abe Fortas left the court and it was in the nineteen sixties that you saw so most important judicial limits on the police and protection for the rights of criminal suspects and defendants. The most famous, of course, was Miranda versus Arizona in nineteen sixty six, which Chief Justice Warren said custodial interrogation by the police questioning a personnel in police custody is inherently coercive. And the court thought that the warnings it was prescribing would lessen the coercion or in 1963, Gideon versus Wainwright, the one most important Supreme Court case in history, so that if a person is being tried in state court and can’t afford a lawyer, the government is obligated to provide one. To me, it’s always been shocking that four hundred and seventy one years of American history, a person to be tried in state court without a lawyer and even convicted and sentenced to life in prison. And that doesn’t violate the Constitution. And by the way, it’s shocking to me that now Clarence Thomas, in an opinion in Gaza, Idaho, says that Gideon versus Wainwright was wrongly decided. So you had the Warren Court, these and other cases imposing limits or since we were talking about eyewitness edification and weighed versus the United States in nineteen sixty eight, the court said that if there is a lineup going on after someone’s indicted, the criminal suspect has the right to have a lawyer present because the lawyer will be able to spot suggestive police identification procedures and maybe deter them. But we’ve also got to remember it was the Warren Court in 1968 in Terry versus Ohio that allowed the police to engage and stop and frisk and really opened the door even further to racialized policing. Terry versus Ohio I think people remember the two men in Cleveland walking back and forth on a public sidewalk, completely legal behavior, a police officer thought. Maybe they were casing the joint. Not coincidentally, the two men were black and the officer was white. The officer then stops them, frisked them and finds they have guns. The Fourth Amendment says there can be searches only for probable cause. No one argued there was probable cause here that a crime had been committed. But the Supreme Court, in an opinion by Chief Justice Warren one, says police don’t need probable cause. They only need reasonable suspicion, a lesser standard that the courts never defined. And we know from study after study. So I mentioned it earlier that stop and frisk has been used in a highly racialized way.

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S2: One of the things that is clear from the book and I think from other sort of histories of of how the Berger Court and the Rehnquist Court are constructed is the extent to which the story that we tell that, you know, abortion was the only thing that mattered or, you know, LGBTQ rights, I think we’d say in the modern context is the only thing that matters. But boy, for Nixon, it was crime. It was crime. And I think that we kind of know that intuitively. But one of the things you do so beautifully in the book is really connect that to outcomes and to Nixon’s vision of what he needed to run on and against. And I wonder if you can just help us understand because I do think Erwin it dovetails with your earlier really salient point about politics can’t cure this.

S1: Richard Nixon ran for president in 1968 against the liberalism. The Warren Court, in which he focused on especially was how he wanted one or two justices. He was going to appoint strict constructionists. We tend to forget now how controversial decisions like Miranda versus Arizona were at that time. I think the reason that the Warren Court decided today was Howard Dean was the tremendous criticism that he got for handcuffing the police, and it wasn’t willing to impose further limits on the police. And as everyone knows, from 1969 to 1971, Nixon got to appoint four justices to the court, and at least at that time, all four Berger, Blackmun, Powell and Rehnquist were very conservative. In the place where you could see that is with regard to what it did is to the Fourth Amendment or the Fifth Amendment or habeas corpus. And there were many who said, well, the burger wasn’t so conservative because after all, it handed down Roe vs. Wade. But if you look at what it did with regard to criminal procedure and lessening controls on the police, it was a very conservative court is what Nixon ran to accomplish, and he succeeded.

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S2: And can you discuss a little bit? I think you said in response to an earlier question. The eyewitness IDs are a place where if you could wave a wand and have the court just profoundly understand that it’s missing the story, is there someplace or other that is your triaged list of these are the things I would if I could wave a wand put an end to right now?

S1: In the last chapter, I give a long list of things that I would do. And we’ve touched on many of them with regard to eyewitness identification. I would make sure that any situation where there’s a lineup the suspect gives a right to lawyer present. I would, in some states like Wisconsin, have done eliminate police show up procedures. What is show up is, is where the witness or victim is shown one person and asked, Is this the one who did it? And often the victim or the witness is seeing the suspect in the very fleeting way under great stress. And if you put someone before them, is that a basically that race in that size, they’re going to say, Yeah, that’s the one. I would get rid of that. I would say that an eyewitness identification is suggested it should be excluded no matter what. Some states have done this as well. But the Berger quote went exactly the opposite direction. When we come to searches, the things that we talk about, I would eliminate pretextual searches if it’s clear that what the police are doing is using a traffic stop is a pretext for searching a car for drugs. The search shouldn’t be allowed or early in the conversation. We talked about eliminating the chokehold that’s long overdue. Or I think of the death of Breonna Taylor or police entered without announcing the middle of the night. The man who was there didn’t know is the police. He thought it was intruders, so he picked up a gun. The police started shooting and a bullet killed Breonna Taylor. Or another example that we haven’t talked about over 90 percent of warrantless searches are based on consent by the suspect. But many judges have said the police often lie about having gotten consent. My students are always surprised I teach criminal procedure when they read the cases where the police say Would you consent to search of the trunk and the physio course? And then there’s dead bodies or a huge quantity of drugs in the trunk. A few cities in North Carolina adopted the practice of requiring written consent before there could be a search on the basis of the waiver. And they found a tremendous decrease in consent searches. So I’ve just rattled off several of these things. All of them can be done by state legislatures or even by city councils. All of them could be done by state supreme courts interpreting state constitutions. All of them, of course, should be done by the U.S. Supreme Court.

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S2: One of the things this reminds me of is your toward the end when you’re talking about solutions and how to think through solutions in assuming that the Supreme Court is not going to be part of this conversation for the foreseeable future. And one of the things you talk about in pretty great detail are the calls to abolish the police Erwin, and it raises two questions for me. I mean, I’d love for you to to tell folks what you’re thinking about that and how you’re thinking it through, but also because we always have to ask the second part, Breyer ask part of a two part question. It seems to me that one of your objections to this conversation around abolish the police or defund the police is that it allows us to speak in really cartoonish ways that are not nuanced and therefore everybody’s sort of pinging around at the extremes. So maybe answer the second part of the question first, because I think everything you just laid out is incredibly nuanced. None of them are going to be on a bumper sticker. But I think one of the things you’re saying when you talk about these calls to quote unquote abolish the police is that there’s no way that that is a helpful frame for the kinds of really, really granular fixing fixes that you’re putting forth

S1: to start with. I think we have to be precise, but terminology and often people in this particular debate aren’t. If you buy, defund the police is find some tasks that have often been done by the police that will transfer to social service agencies. I agree. I think there are instances where we ask police to do mental health functions better transferred to other social service actors. But if what we mean by defund or abolish the police is literally eliminate policing. It’s neither realistic nor desirable, whereas you were just saying a helpful frame. It’s not realistic because every society needs some form of law enforcement. In fact, even in overwhelmingly minority communities, the proposal to abolish the police has very low levels of support because those are communities that often feel that they’re both under policed and overpoliced, that they don’t receive the police protection that they need for serious crimes and minor infractions get to be the basis for arrests and prosecution. But also, if we abolish the police, all that would happen would be those with resources would hire private security forces, and those wouldn’t even have to comply with the Constitution because they’re not part of the government. And so I don’t think it’s a helpful frame to talk about abolishing the police because it’s not going to happen. Even Minneapolis, in response to public pressure after the death of George Floyd, initially said We’re going to abolish the police quickly. Backed away from that is increasing the funding for the police. This isn’t a popular position among many of my students, many of my students are all committed to abolishing the police, but I don’t think it’s realistic and I don’t think it’s a useful way of talking about it.

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S2: And maybe Erwin correct me if I’m wrong. But part of that talk that you described, I think at the very beginning where within one year of millions of people in every state on the street protesting Black Lives Matter and protesting George Floyd within a year, all of that is is in some sense wiped away. And I think what you’re saying, correct me, if I’m wrong, is that part of the speed with which these waves ebb and flow is because of these extreme constructions.

S1: I certainly think the extreme constructions are not helpful. Those who favor abolition of the police, including some of my colleagues. Contrast that with reforming the police and they say we’ve got to abolish the police, not reform the police. But if we’re never going to abolish the police, all of the focus on that is attracting attention from energies that could be used for reforming the police. Also, I think it’s politically undesirable. The vast majority of people don’t want to abolish the police, so calling for abolition isn’t constructive in that way. People want to feel safe. People of all races want to feel safe. And when crime is high, when murder rates are high, people are then going to want to turn to the police. But I think the solution then has to be, how do we go about reforming the police to really make a difference?

S2: And somebody put this question in the chat, but I’ll just say it is their language that is better bumper sticker language than, you know, the question in the chat is is defund the police better? Is there, you know, given the amazing suggestions you have at the end for legislative and local fixes? Is there a frame that is useful to you to shorthand some of this?

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S1: I don’t have the shorthand. I wish I did. But I think the concept is let’s make the police more effective by letting some of the testing out performing be transferred to others who are better suited to it, that there are things that the police are doing that we don’t need law enforcement. Berkeley, California, where I am right now, is considering not having police enforce traffic laws to have a dedicated group of people just for that function. And we can talk about whether that’s the right solution or not. But to me, that’s the direction we should bear. The example I gave earlier. Mental health situations is, you know, so many of the excessive force qualified immunity cases involve the police coming to somebody who’s clearly mentally disturbed. The Supreme Court case a couple of years ago that involved a woman who was hacking away at a tree with a knife and another woman was trying to talk her into putting down the knife. The police came and shot the woman with the knife. The suit was brought for excessive force, and the Supreme Court said qualified immunity. We didn’t need an officer with a gun in that situation is the first line of response

S2: that leads me to a question I had at the back of my head. As I read your book, which is nice sherpa, that there is a massive Second Amendment case barreling down upon us. Conceivably, depending on the scope of what the court chooses to do, there might be a lot more guns out on the streets. And again, this feels like an inexorable doom loop to me. Erwin, where the more the police are afraid that people are armed, the more they are going to police in a fashion that you and I would deplore. But it does feel like it’s impossible to disconnect this from the very remote chance that there’s going to be police who are in exigent reasonable fear of their lives.

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S1: It’s an excellent point. Police are human beings, and they have to make split second decisions. The more they’re afraid, the more they’re likely to turn to deadly force. The Supreme Court decision that you mentioned your rifle and pistol association was brilliant, I think is going to strike down a New York law that restricts having concealed weapons. And I think what the Supreme Court is going to say is there’s a second right to have guns outside the home and a second right to have a concealed weapon. That certainly will make policing more dangerous. And the more police are in fear, the more than it’s likely to be excessive force.

S2: I think I’m going to ask you a meta question and then I’m going to ask you an optimistic question and only only you. Do I throw the meta question at in the 56 minute? But I think for me, one of the things that you’re straddling here is both holding the court accountable and as I said at the beginning, dampening expectations that this present Supreme Court is going to do anything. And I think probably for a lot of listeners and a lot of readers, that’s maddening that we are just assuming that the court is going to continue freeing up the police, as we saw this week to do more and more unconscionable things. Is there some middle place for people who want to think about how to make this salient and important, even for the justices, even as they leave Sonia Sotomayor to write these heartbreaking dissents by herself, to the extent that there’s any pressure that can be put on the court itself, what does that look like?

S1: I agree with your premise that we both want to hold the Supreme Court accountable for the problems of police, the United States, and at the same time, we have to be realistic given this court. It’s not going to control policing in the United States. I don’t see any amount of public pressure changing with justices like Clarence Thomas and Sam Alito and Neil Gorsuch and Brett Kavanaugh and Amy Coney Barrett. Do I think they live in their own bubble? I think, though, that there are solutions that’s beyond our scope now. I would favor expanding the size of the Supreme Court because I don’t know any other way to change what the Supreme Court is going to do. But I don’t see that happening, at least right now, because the Republicans in the Senate would filibuster any such bill. So that’s why I say we got to look elsewhere and pressure Congress in state legislatures and city councils and educate state courts to use state constitutions.

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S2: OK, so here’s my optimistic question. Your book really brought to mind a conversation I had a few months ago with Adam Cohen on the podcast about his book, where he talked about that same sort of shimmering few years when the Warren Court, in his case he was describing, came right up to the brink of dealing with income inequality and poverty. And as you describe in your book, that squelched forever by Nixon and his court appointees. So he was describing constitutional rising poverty. You’re describing institutionalizing policing in ways that would limit abusive practices. And the story that I would love for you to end on is this ridiculous counterfactual that I think Adam offered us of what the world would look like today if some of those Warren Court reforms were still in effect, what the world might look like, what policing could and should look like if we were dedicated to some of those principles that Thurgood Marshall was urging that you started this podcast with

S1: Adam’s book is magnificent, and the counterfactual is so appealing. What if Hubert Humphrey won in 1968 rather than Richard Nixon appointed those four justices? Or what if Hillary Clinton had been chosen president in 2016 and picked those three justices, rather than it being Gorsuch, Kavanaugh and Barrett? I think there’s many things starting where we began the program. Lyons was Los Angeles would have come out differently. And courts would have the power to issue injunctions against abusive police practices like the chokehold. I think that the Supreme Court would have developed a much more robust Fourth Amendment set of doctrines, including they would have had a robust exclusionary rule as a remedy that gutted the exclusionary rule. I think they would have continued to provide protections against coercive police interrogations. They just started dealing with the problem of eyewitness identifications. And I think it a whole body of law that would have been developed. I don’t think qualified and absolute immunity would have developed that way. It didn’t exist before the Berger court. And so I think they would have been not only more robust, right, but also far better remedies.

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S2: That is precisely the picture I wanted you to paint because I think Erwin, it at least allows us to think about what we can be asking of our local police, of our communities, of police departments. And as you said. Under state constitutions and state courts and state legislatures that there are things we can move toward, even as it feels slightly hopeless, Erwin Chemerinsky is dean of Berkeley Law School. Prior to joining Berkeley Law, he was the founding dean and distinguished professor of law at UC Irvine. He’s the author of 14 books including This Really, I think, important new book Presumed Guilty How the Supreme Court Empowered the Police in Subverted Civil Rights Erwin. This is the beginning of the beginning of a conversation I hope to keep having with you in the years to come. It is, as always, a treat and a pleasure to be in discussions with you.

S1: I too hope it’s just the beginning of a beginning, and it’s wonderful to do this with you. Thank you so much

S2: and thank you to listeners on the podcast for buying, reading, thinking about this book and recognizing that it is really, really essential work we all need to be doing in subtle, nuanced but urgent ways right now. And that’s a wrap for this episode of Amicus, thank you so much for listening, and thank you so much for your letters and your questions. You can keep in touch at Amicus, at Slate.com, or you can always find us at Facebook.com slash Amicus podcast. Today’s show was produced by Sara Burningham. Gabriel Roth is Editorial Director. Alicia Montgomery is executive producer, and June Thomas is senior managing producer of Slate Podcast. We’ll be back with another episode of Amicus into short weeks. Hang on in there till then.